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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Tuesday, July 10, 2012

The International Criminal Court issued its first sentence today in the Lubanga case. In a thankfully short Decision, the Trial Chamber sentenced him to 14 years, minus time served. There is a nice summary of the reasoning by Jennifer Easterday over at IntLawGrrls and here are a few first thoughts on the criteria for determining the sentence and the actual sentence he received. I will discuss the Chamber's view on Ocampo's conduct in the next post.

The criteria for determining the sentence

In a previous post on the Taylor Sentencing Judgment, I expressed some concerns on the confusion between the underlying rationale for having international criminal courts in the first place, and the specific criteria taken into account for the sentencing.These concerns equally arise here. Indeed, I am not convinced by the fact that the Decision refers to the Preamble of the Rome Statute (§16) as a source of inspiration. The Preamble applies to all the crimes, and is not a justification for considering that a particular crime is of particular gravity. This confusion gives rise to meaningless and empty statements like (§37):

"The crimes of conscripting and enlisting children under the age of fifteen and using them to participate actively in hostilities are undoubtedly very serious crimes that affect the international community as a whole."

That is certainly true, and indeed explains why the crime is contained in the Statute in the first place. But it doesn't explain the particular gravity for the purposes of sentencing.

A more relevant factor is the particular vulnerability of the children, even if one could, in theory, contest this as well as an unwarranted classification of harm, especially as International Criminal Law continues to refuse to acknowledge the idea of a hierarchy of crimes, thus rejecting the easiest conceptual basis for a differentiation in sentencing.

On a more positive note, I particularly appreciate two aspects of the decision. The first one is that the Judges made clear that factors were not considered twice, i.e, factors considered for the purposes of gravity were not taken into account as aggravating circumstances. This was applied, for example, to the fact that the victims were "particularly defenseless" (§78). The second positive aspect is the rather careful approach of the Majority to the consideration of sexual violence as an aggravating circumstance. While I have my doubts as to whether this should be considered at all because Lubanga was not charged with the crime, once the Judges did do so, they set a high threshold, considering that (§69):

However, that said, it remains necessary for the Chamber to be satisfied beyond reasonable doubt that: (i) child soldiers under 15 were subjected to sexual violence; and (ii) this can be attributed to Mr Lubanga in a manner that reflects his culpability, pursuant to Rule 145(1 )(a) of the Rules.

Based on this test, the Majority found that there was no sufficient evidence to suggest that Lubanga ordered or encouraged this practice and therefore refused to consider it as an aggravating circumstance.

The Chamber also deals with the OTP decision not to charge sexual violence and the OTP's misconduct during the trial, but I will discuss these issues together in a separate post.

Determination of the sentence

With all this in mind, the judges were all set to reveal the final figure for the sentence. On this, the decision clearly leaves us in the dark on why 14 years, as international judgments often do. The Decision starts by mentioning the SCSL judgments which have considered this crime, with sentences ranging from 7 years to 50 years, which is certainly not of much help. And then, after 25 pages of factors that were or were not considered, the result, 14 years, falls from the sky without the reader being any more enlightened, despite the appearance of explanation. The Judge might as well have thrown dice and rendered a one-page decision.

To be fair, the Judges do explicitly say that in the absence of any aggravating circumstances, a life sentence (which the OTP had actually not asked for anyway) would be inappropriate (§96). The Chamber also rejects the OTP suggestion that a baseline of 24 years should be adopted for all crimes, notwithstanding the fact that this is not provided for in the Statute. I must admit that I have sympathy for the OTP's position, which would be a step in the direction of some predictability. And the final sentence decided upon by the Chamber is not any more in the Statute than the baseline proposed by the OTP.

But apart from these clarifications, the Judges do not specifically explain why 14 years. The OTP had asked for 30 years. The Chamber says that it has taken into account all the circumstances of the case to come up with the final figure.What number did the judges start from to add years for the particular gravity of the crime or deduct time for the mitigating circumstances? Why is there a different sentence for conscripting (13 years), enlisting (12 years) and using the children in hostilies (14 years)? Of course, one can see the logic there, but it would have been nice to have some explicit clarifications.

The whole absurdity of the process is illustrated by the (unsurprising) dissent by Judge Odio Benito. In a 12-page dissent (so a third of the majority decision), the Judge expresses her "strong" and "firm" disagreement on the fact that the Chamber did not sufficiently take into account the sexual violence that occured as a consequence of the commission of the crime. But as a result of this disregard for "the damage caused to the victims and their families" (dissent, §2), Judge Benito suggests a whooping one year increase (15 years instead of 14 years) to the sentence imposed by the Majority. This is of course ridiculous. Assuming that Judge Benito is right in what she says, this one year differential hardly deserves the time spent writing (and more particularly, reading) the dissent.